Birnhack: Nations, Community, Copyright

The law is never neutral. For critical observers, this is to state the obvious; for everyone else, this is too often a surprise. Legislatures strive to produce laws that apply to all in an equal manner; courts constantly guide themselves to adjudicate like cases alike. But, perhaps it’s the human nature, neutrality is difficult to achieve. No law in a democratic country today would explicitly treat one kind of people differently than another, unless it is to amend a prior mischief, in the form of affirmative action. But inevitably, seemingly neutral laws carry with them hidden assumptions. In copyright law, for example, the law assumes that there was one author who created an original work and that he or she can be identified. But some works are created by a community, and it is difficult to identify the founding father or mother of the work. The result might be that such works are left outside, without copyright at all. A critical lens strives to expose such hidden assumptions. A critical race theory lens asks about such divisions that are based on hidden racial assumptions.

How does your work contribute to re-imagining IP in the twenty first century?

My current work is not on race per-se, but on nationality. IP laws are territorial and apply only to one country’s territory, regional arrangements aside. But within each jurisdiction there are numerous cultural, social, religious and in multicultural societies, also national divisions. Does the law treat members of all national groups equally? Does the law prefer, benevolently or not, one national group to the other? Who uses the law? Are there more inventors from one national group than from another? Lawyers too often avoid such questions and answer that the law applies equally to all. A critical-national lens builds on critical race theory. My own research applies it in a legal history context, to Mandate Palestine (1917-48), where I inquired the use of copyright and trademark law by the local population of Jews and Arabs. Each is studies vis-à-vis the British, colonial law, and especially, I focus on the intersection of the two national groups, as reflected in IP law.

How do you hope to advance the discourse of race and IP through your work?

Each country has its unique history and complexities. Critical scholars often focus on the relationship between the dominant cultural group, which enjoys the hegemonic status in the local culture, and a minority group. This is a crucial and much needed perspective. I hope to draw attention also to the relationships between cultural (and national) groups, where the government is not necessarily involved directly. This was the case with the British Empire in many of its colonies: the British government had its own interests, the locals had different interests. The intersection among these groups may shed light on the dynamics of law, and culture.

Anthea Kraut

Lawrence Liang

Roopali Mukherjee

Minh-Ha T. Pham

Henry Stobart

Madhavi Sunder

Conference News

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